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Non-compliance with a VCAT order

Last updated: 29 Mar 2021

When can a residential rental provider issue a notice to vacate?

The Residential Tenancies Act 1997 (Vic) (RTA) allows for two situations in which a residential rental provider may issue a notice to vacate in response to failure to comply with a breach notice:

  1. for failure by the renter to comply with Tribunal order (s 91ZO); and
  2. for successive breaches by the renter (s 91ZP).

Equivalents provisions apply to rooming houses (ss 142ZG and 142ZH respectively), caravan parks (ss 206AW and 206AX respectively) and Part 4A site parks (ss 207T and 207U respectively). Residents of specialist disability accommodation can be issued a notice to vacate for failure to comply with a Tribunal order (s 498ZX(1)(l)).

For information on notices to vacate in general and options to challenge them see Checking notices to vacate.

Practice tip

Notices to vacate issued on the basis of non-compliance can be challenged on the basis that the conduct that forms the basis of the notice to vacate was caused by the perpetrator of family or personal violence: s 91ZZU. A challenge on this basis must be made within 30 days after the notice to vacate is given. See Family Violence Provisions for more information.

Failure to comply with Tribunal order

Section 91ZO enables a residential rental provider to give a renter a notice to vacate if the renter fails to comply with a compliance order (see Compliance Procedures) made by the Tribunal. When applying to the Tribunal, the application must be accompanied by a copy of the order which it is alleged the renter breached: Victorian Civil and Administrative Tribunal Rules 2018 (Vic) rule 8.07(7)).

Defending a possession order application for non-compliance with a Tribunal order

Notices to vacate for non-compliance with a Tribunal are not ‘immediate’ notices. 14 days must pass after the issuing of the notice before the residential rental provider can apply to the Tribunal for a possession order.

The Tribunal can only make a possession order if:

  • a residential rental provider was entitled to give the notice to vacate (and the notice has not been withdrawn) (s 330(1)(a)); and
  • s 332(1) RTA is not satisfied; and
  • it is reasonable and proportionate (as defined by s 330A) to make the possession order, taking into account the interests of the residential rental provider, the renter, any co-renters and any neighbours who have been affected or may be affected by the acts of the renter (s 330(1)(f)).

In relation to the first issue, the Tribunal will need to be persuaded that the renter has failed to comply with the Tribunal’s compliance order made under s 212. This will generally turn on the wording of the Tribunal’s compliance order under s 212 and the evidence given by the parties about the renter’s subsequent actions or conduct since the making of that order.

In relation to the second issue, under s 332(1) RTA, the Tribunal must not make a possession order in relation to a notice to vacate given under s 91ZO where the Tribunal is satisfied:

  1. the failure to comply with the compliance order was trivial or has been remedied as far as possible; and
  2. the breach of duty is not a recurrence of a previous breach of duty.

These provisions are cumulative and must all be satisfied in order to avoid a possession order.

In relation to the third issue, see The reasonable and proportionate test. The reasonable and proportionate test in s 330A was introduced in 2021 and therefore there is limited case law available on its operation. However, an equivalent test applied under the COVID-19 temporary tenancy laws. The following breach of duty case decided under the COVID-19 tenancy laws may shed light on how the reasonable and proportionate test will be determined in applications for possession under s 91ZO:

Practice tip

If the renter did not attend the hearing that a compliance order was made at, it may be possible to seek a review of the compliance order which, if successful, would mean that a possession order could not be made as there would be no compliance order in place. On this see, Review hearings.

Successive breaches by renter

Section 91ZP RTA enables a residential rental provider to give a renter a notice to vacate if the renter has breached a duty provision and has breached the same duty provision on two previous occasions. The residential rental provider may only issue this notice to vacate under s 91ZP where it has given breach of duty notices in respect of each of the alleged prior breaches: s 91ZP(1)(c).

This form of notice to vacate is often informally referred to as the three strikes rule as it enables a residential rental provider to issue a notice to vacate on the third strike rather than issue a third breach of duty notice.

It is possible for a residential rental provider to initially issue a breach notice rather than a notice to vacate for a “third strike”. After the expiry of the third breach notice after 14 days, the residential rental provider can then issue a notice to vacate: s 91ZP(2).

Defending a possession order application for successive breaches

Like notices to vacate under s 91ZO, notices to vacate for successive breaches are also 14 day notices. 14 days must pass after the issuing of the notice before the residential rental provider can apply to the Tribunal for a possession order.

The Tribunal can again only make a possession order if it is satisfied that the residential rental provider was entitled to give a notice to vacate and that it is reasonable and proportionate to make a possession order.

The Tribunal will need to be satisfied that there has in fact been three instances of the tenant being in breach of the same duty provision and that on at least two of those occasions a valid breach of duty notice was given. The residential rental provider’s evidence about the notice to vacate and each of the prior breach of duty notices (and the incidents that led to them being issued) should therefore be carefully examined.

Is there a discretion to postpone a warrant for possession?

For both breach of Tribunal order and successive breach notices to vacate, the Tribunal has the power to postpone the issuing of a warrant for possession after a possession order is made if satisfied that the renter would suffer hardship if the issue of the warrant were not postponed, and that hardship would exceed the residential rental provider’s: s 352.

Checklist

When advising renters who have been issued with an application for possession and preparing for a hearing, lawyers should consider:

  1. Whether the Notice to Vacate contains sufficient detail to enable it to comply with the requirements of the RTA (s 91ZZO(d)) and the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) rules 8.07 and 8.08. See Checking notices to vacate.
  2. In relation to applications for failure to comply with a compliance order (s 91ZO):
      1. Whether the compliance order was validly made under s 212 of the RTA;
      2. Whether the tenant attended the hearing at which the compliance order was made;
      3. Whether the alleged conduct constituted a breach of the compliance order; and
      4. Whether the Tribunal can be satisfied that both sections 332(1)(b)(i) and (iii) are met; and
      5. Whether an argument can be made under section 330(1)(f) of the RTA as to why it would not be reasonable and proportionate to make a possession order.
  3. In relation to applications made in respect of successive breaches by a renter:
      1. Check the residential rental provider has issued at least two breach of duty notices prior to issuing the Notice to Vacate; and
      2. Ensure that on each occasion the residential rental provider issued a valid breach of duty notice (including acts, facts, matters and circumstances of incidents alleged); and
      3. Make sure the breach of duty notices and Notice to Vacate all allege breaches of the same duty.

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